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Allen M., Esq., Employment Lawyer

Category: Employment Law

Satisfied Customers: 19176

Experience: Employment/Labor Law Litigation

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I had a conflict with my employer over an issue that could

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I had a conflict with my employer over an issue that could be considered discriminatory (but that is a whole different issue for now). I chose to turn in my 2 week notice. The following day I received a text message saying they decided to "terminate" me. They did not pay out my 2 week notice. I filed for unemployment and they are fighting that as well. Can they do that? It seems to me the employer should be responsible for one or the other, either paying the 2 weeks or unemployment.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

Well, no. That's not actually how the law works.

What is legally happening when you give two weeks notice is that you are immediately resigning your employment, but you are offering your employer the right to an additional two weeks of your services. They can accept those or not, and not accepting those two weeks does not legally convert the resignation to a termination.

I know that isn't what it seems like, but this is well-settled law and, unfortunately, not something that employees have ever been told in mass. Personally, I think that all employers should be required to disclose this fact at the time of hire, until all employees understand what giving notice actually means.

So, I would focus more on the reason that you gave your notice. If you can show that you gave your notice because you were leaving a situation that any reasonable person would leave (like discrimination), then the fact that you resigned doesn't legally matter.

No where did I say that an employer can do anything that they want. I also did not say that you shouldn't bother appealing to unemployment.

I answered the question that you asked though.

Your question concerned whether or not an employer has to pay out notice when you give it if they choose not to keep you during that period. The answer to that question is, no. As I previously stated, on this issue, the courts have repeatedly held that when a person gives notice of resignation, they are effectively quitting at that very moment and then offering the employer the right to an additional period of service that the employer doesn't have to accept. So, for the purposes here of you demanding that you either get two weeks of pay or this be converted to a termination. The law doesn't work that way. I wish I could tell you differently, but to do so would be to lie to you and I won't do that.

Now, I also told you how to focus your appeal. I didn't say to not appeal. Instead, I said to focus on your appeal on WHY you quit. There was a disagreement, you said, which could amount to discrimination. If you can show that any reasonable person would have quit that job, you can still get unemployment.

I can understand how you may be unhappy with how the law treats your situation, but my answer was not as bleak as suggesting that your employer can do anything that they won't or that you should not bother appealing.

I do apologize for my tone. I am frustrated because this particular person seems to get away with treating people however she wants to and it seems very unfair to myself and other employees who have left in the past. So do I just prepare a statment for the workforce commission or would I need to have an attorney do so if I allege discrimination?

Having an attorney frame your arguments never hurts. We have the ability to remain emotionally detached, and so more clear minded in delivering the arguments. We know what is legally relevant and not relevant.

I totally understand your being upset. It makes perfect sense, but you have to focus your arguments where they will have legal leverage.

An attorney can always help with that. The downside is the cost. If you can find at attorney willing to do a limited representation for this purpose, that may be worth your while financially.

On the issue of discrimination though, you need to address that both with unemployment and with the Equal Employment Opportunity Commission in your state if you want to preserve the right to actually sue over that issue.

Appeal your unemployment issue. See if you can find a local attorney to assist you, on a limited basis, in the hearing. If not, focus on arguing why you quit. Not that you have had problems with this person. Say how it is discrimination. State how you tried to deal with the situation, but the employer was unreasonable, etc. You have never really stated what happened, so I can't really express the facts of your argument here.

The point is that either you or your attorney have to focus on how reasonable it was for you to quit. You can't argue termination here. The law doesn't support that, so you have to show that you quit with "good cause."

Then, on an entirely separate occasion, contact the Equal Employment Opportunity Commission. That is a separate agency that investigates discrimination in the work place and will preserve your right to sue for wrongful discrimination. This is an entirely different step than unemployment and starts you down a different path.

I will see if I can explain briefly....I accepted a position on the basis that I would have flexible hours(I have been there approximately 7 yrs) I was assistant to the "COO" who like I said is not a very honest person which is one of the reasons why she sort of pushed me out, I knew too much. They are a medical practice that has had some trouble with medicare billing. On the basis of discrimination...I received an excellent reveiw however received the lowest bonus in 2011, haven't had a raise in almost 3 years. I do the job the COO did and more when she hired me for substantially less. She offered certain other employees medical supplemental money if they didn't take our insurance. It was not offered to me. She herself doesn't come in until almost 9 and doesn't come in at all on Fridays. She has other employees that she has worked out certain special circumstances with but even though I have asked her several times since the first of the year she wouldn't even discuss it with me. Those are just some quick highlights on why I quit. When she decided she was no longer going to be flexible with me and wouldn't discuss options with me, I certainly felt I was treated unfairly and differently than everyone else there. Every employee there would tell you that I worked harder than anyone there including her.

I am white and educated (I was possibly the only educated person there above high school with the exception of the drs that s). She is Latina and not educated (although she claims she is I am quite certain she is not. She has told different stories as it relates to her level of education).

Ok. Your education status is not legally relevant. It may be a reason that she doesn't like you and wants to keep you down, but it's not legally helpful because it is not illegal to discriminate on that basis.

You would have to prove that the basis for her discrimination was your race. One way to do that would be to show that these other people that she was favoring were also Latina, or at least, not white.

If she was treating other whites well and just not you, that really harms any sort of suggestion that the basis for the treat was your race. Otherwise, she'd treat all white people like that.

These are the types of facts that the EEOC will have to investigate, to determine if there was true Title VII discrimination here that would justify a lawsuit in state or federal court, or rather, if this was just an office politics situation where she didn't like you personally, for whatever reason (which would not allow for a separate discrimination claim in state or federal court).

NOW, those same facts, which may or may not lead to an EEOC discrimination claim can still support an unemployment appeal here, based on your quitting for "good cause." You need to focus on the changing of the terms of your employment (changing the flexible hours under which you were hired) differing treatment, the greater scrutiny, the rudeness, etc.

I am leaving now for a meeting. I didn't realize we'd be talking for this long when I took the question. It's not a problem. Your questions are all very on point, I just couldn't predict that we'd run into this meeting period.

I will return. If I have not answered your questions fully, feel free to post another question with the understanding that I will not be able to address it until later this evening. If I have answered your questions, please rate my service.

Certainly. I apologize. I did not understand how this works. I will take the route on why I quit and have requested statements from people with whom I worked in the past that can back up my claims, do you think those type of things are helpful? I guess I will just go from there. I have never filed for unemployment before and really if I didn't think that I had been treated unfairly I wouldn't be going this far. I am actively looking for a job and once I do I am sure I will realize it was the best thing I could ever do for myself. If there is something else I need to for you, please let me know. I really appreciate your time.